The thought of the instruction does not readily pre-ent itself. Indeed, we are not even now sure that we have arrived at a correct interpretation. The contract of insurance is not included in the record, but we may concede that the trial court, with such contract before it,
Directing attention now to the proposition last stated in the instruction, it is to be said, in the first place,' that there is no competent evidence in the record tending to
A further and fundamental error of the instruction arises out of the fact that thereby the issues in the case are wholly ignored. Reduced to a sentence, the instruction tells the jury that upon finding the facts in reference to the medical examination to be as stated, and finding as a
IV. It will be observe,d that the issue tendered -in the second count of the petition is .predicated upon the allegation that there was an entire failure on the part of, the defendant company to deliver a policy as applied for, and in payment of which the note of W. J. Armstrong was given. Counsel for appellant does not question the right of plaintiff to recover upon proof of the matter alleged in said count. But it appears in connection with the evidence offered by plaintiff in chief — and this without dispute — that a policy such as was called for by the application of said W. J. Armstrong was issued by the defendant company, and.that the same was forwarded to him by mail, and that the package was actually delivered to him by the local postmaster. He says that the policy was handed to him, but that he never opened it, and told the postmaster to send it back. At the close of plaintiff’s evidence' in chief the defendant moved for a directed verdict on the ground that a delivery of the policy was affirmatively and without dispute shown by the evidence. This motion was overruled, and the court submitted this branch of the case to the jury upon two instructions.
Other assignments of error need not be noticed. Where the complaint may be said to be well-founded, the error is either made clear by what we have already said, or it is of such character that it is not likely to arise upon another trial. For the errors pointed out, the judgment is reversed, and remanded for further proceedings according to law. — Reversed.